STATUTORY PROBLEMS
MADALiNE KINTER REMiLEIN*
Local school authorities act in the administration of public schools as agents of
the state. There is almost always a constitutional mandate on the state to provide
educational opportunities for its children. To implement constitutional provisions,
state legislatures have enacted school laws. These school laws create state regulatory
bodies and local administrative agencies. These school laws establish, or permit
the establishment of, local school units which have limited powers of administration.
Each of the preceding articles has approached the jurisdiction over pupils from a
specific point of view. Explicit or implicit in each article are problems that have
been or could have been solved by statute. Statutory solutions of some of these
problems have been more or less adequate in meeting needs at the time of enactment, although not all these statutory solutions have been brought up to date to
meet current conditions. Nor have all legislative measures solved the problems they
were intended to anticipate.
Solution of other problems has not been attempted by legislation; in fact, it is
even debatable whether or not statutes should be specifically aimed toward the
solution of certain kinds of problems. It can be strongly argued that regulations
promulgated under general statutory authorization can provide more fluid and
more particularized answers to many questions arising in the jurisdiction over
pupils. Administratively, the regulation of public school pupils is a local problem;
legally, it is a state problem as well.
Local school districts are usually incorporated legal entities with local powers
specifically granted or necessarily implied for the conduct of their duties. In a particular matter, no power exists at the local level unless the power has been granted
by the state. Neither a specific nor a general power can be extended beyond a
reasonable interpretation of the grant of that power. Although legislation, general
or specific, must cover every exercise of power desired in the administrative jurisdiction over pupils, this principle does not curtail school administrators as much as
some think. It merely clarifies their position. School administrators who shrink
from this philosophy may be soothed by an understanding of the different kinds of
legislation describing their authority.
I
KINDS OF STATUmS AND Tim EFFrcTs OF EACH
Mention has been made of general and specific powers, of legislation granting
specific powers, and legislation granting general powers from which specific powers
may be implied. Further classification is desirable.
Assistant Director, Research Division, National Education Association of the United States.
LAW AND CONTEMPORARY PROBLEMS
Statutory authority, be it specific or general, may give state and local school
administrators considerable discretionary power. On the other hand, legislation, be
it specific or general, may prescribe the exercise of a duty, leaving state and local
school administrators ministerial power only. Laws range between the extremes
of wide opportunity for school administrators to exercise subjective choice and of no
free choice. Laws also sometimes grant opportunity for pupils and their parents to
exercise subjective choice.
Many school laws constitute a delegation of authority to state and local school
administrators. It is unconstitutional for a legislature to delegate its power to make
laws, but it is proper for a legislature to prescribe fundamental principles and to
confer upon its agents the authority to implement these principles by the procedure
prescribed legislatively. One type of statute gives rule-making powers to state and
local school administrators. Interpretation of statutory provisions and the local
elaboration of regulations promulgated by state school officers are included in this
category. Rule-making power may include considerable discretion at the state or
local level; local rules may be merely a more concrete implementation of state
statutes and regulations.
Another type of statute may be called "contingent legislation." The legislature
lays out the pattern on the basis of policy and makes its actual operation dependent
upon future contingencies. Contingent legislation delegates to others the power to
determine whether or not a condition exists and imposes upon them the duty to put
the statute into effect upon a finding of the existence of the specified conditions.
The statutory controls go into effect upon the existence of certain conditions, but
the finding of those conditions devolves upon school administrators at the state or
local level.
Rule-making authority, contingent legislation, discretionary powers, or prescriptive duties may be either general or specific with regard to the many aspects of
jurisdiction over pupils. Categories of statutes are not necessarily mutually exclusive, but all must be constitutional. None can infringe upon the provisions of
the state or Federal Constitution. Each should be consistent with other laws of
the same jurisdiction.
State and local regulations implementing state statutes have the same characteristics: they must be constitutional; they may be general or specific; they should be
consistent among themselves and with pertinent state legislation. They may impose
a duty or grant a discretionary power to subordinate school administrators, to classroom teachers, and to pupils.
The legislature may rely upon state school officers to prescribe regulations in
certain matters and in other matters may by-pass the state administrative body and
delegate the authority to local school administrators. In either case rules and regulations promulgated under statutory authorization have the force and effect of law
within the scope of the authority granted. State school officers may promulgate
rules and regulations in general terms leaving specific implementation thereof to
STATUTORY PROBLEMS
local school administrators. These state rules and regulations may be any of the
types suggested for the classification of statutes, provided the state school authority
has acted within the power delegated to it by the legislature. For example, state
board of education rules may block out a pattern to be followed locally only if the
local school authorities find designated conditions-contingent regulations.
II
STATUTORY VERSUS REGULATORY PROVISIONS
School laws enacted by the legislators of some states are detailed. In other states
the legislators enact only general patterns and authorize state and local school authorities to fill in the details. In the majority of states, there are some laws of both descriptions. What are the relative merits of placing details in state legislation as against
the legislative delegation of authority for working out details by school administrators
at the state or local level?
When the legislature freezes details into a statute, it is more certain that its intent will be understood. Yet, it is possible that the resulting legislation is more
subject to error. Unless advised by state and local schoolmen, legislators may include unworkable details. When detailed legislation goes into effect, school administrators may be forced to choose between evading the letter of the law and defeating the intent of the legislature. Everyday affairs may not fit into the detailed
state legislation and school administrators then have their hands tied. For these
reasons some argue that school administrators, both state and local, being closer to
their problems, should be left free by legislators to meet their difficulties. Also,
changing conditions can be met more easily if details are left to regulation instead of
requiring amendment of a statute. Contrariwise, if educators fail to meet their problems through unwillingness or inability, legislators may feel impelled to enact detailed prescriptions.
Current statutory problems in the administrative jurisdiction over pupils may be
solved in some instances by the deletion from current law of undesirable legislative
detail, in other instances by inclusion of greater detail. This is to say that some
school laws may be too specific and others too general. The suggestion may apply
differently in some states than in others, depending upon the caliber of the legislators
and the educators. What may be handled best by school officers in one state may
need to be prescribed by legislators in another state-and for good reasons.
Also, the different phases of the jurisdiction over pupils may be subject to regulation or to legislation depending upon their nature. In some areas the legislators
may feel that the state's responsibility necessitates prescriptions; in other areas, the
same state may feel that the variety of local conditions necessitates granting discretionary powers to local school administrators. In some areas the legislature may
prefer to enact details it considers essential; in other areas the legislature may agree
that a statement of general policy is sufficient. Under any of these circumstances,
LAw AND CONTEMPORARY PROBLEMS
the language of the statute or the rule or regulation must be clear and not ambiguous.
The foregoing generalizations concerning statutory problems in the jurisdiction
over pupils may be illustrated by reference to the specific areas discussed in the preceding articles, the first of which is admission requirements.
III
ADMISSION REQUIREMENTS
Age and residence are the most common statutory qualifications for admission
to the public schools. Even when a minimum age for free public school attendance
is stated in the constitution, legislatures have been held to have discretionary power
to admit children under the minimum age.' Although constitutional age limits do
not imply a prohibition on the legislative admission of those outside those limits,
legislation widening the constitutional range of free public school education creates
questions that could be avoided if the constitutional and statutory provisions were
consistent. Since the scope of public school education has broadened considerably
in recent years and since constitutional changes are made infrequently, naming
specific age limits by constitutional provision may be unwise.
Legislators, themselves, have enacted inconsistent statutes with regard to age
for admission to the public schools. At one point they name minimum and maximum ages for admission and at other points they enable local districts to maintain
kindergartens and nursery schools, junior colleges, and adult education classes. In
lieu of arbitrary age limits, legislation regarding the age groups to which public
school education is to be made available could fix a minimum range; legislation
could direct that public school opportunities be made available at least for those
between designated ages. A statute of this nature would prescribe a ministerial
duty and grant a discretionary power to be exercised by state or local regulations of
school officers. Possibly, free schooling outside the minimum age range should be a
matter for contingent legislation-depending upon financial ability, need in terms
of population, and the wishes of the residents.
Whatever statutory provisions are made, however, the problem remains of how
stated limits affect children whose birthdays fall within a school term. Statewide
prescriptions might well be deleted, especially at the lower end of the age range.
If classes are overcrowded in a particular school district, local school administrators
should have authority to refuse admission to children who are not the minimum
age on the date the school term opens. On the other hand, it would be unreasonable
to exclude a pupil who reaches the maximum age before the end of the term in
which. his birthday occurs, or to charge him tuition for the balance of the term.
'E.g., City of Manitowoc v. Town of Manitowoc Rapids, 231 Wis. 94, 285 N.W. 403 (1939); State
ex rel. Shineman v. Board of Education, 152 Neb. 644, 42 N.W.2d 168 (195o).
STATUTORY PROBLEMS
State laws and regulations should clarify these particular problems in general terms,
stating policy only and allowing considerable discretion at the local level.
The residence requirement for school admission may exemplify the type of
administrative jurisdiction that should be spelled out in the law or state regulations.
Discretionary authority at the local level is subject to abuse. Some school boards
permit attendance of children who live temporarily in a district to which they have
moved for the sole purpose of attending a particular school; others require permanent residence. Some exclude nonresidents because the space and facilities are
needed for their own resident children, while others allow the use of space and
facilities by nonresidents provided they pay tuition therefor. The situation is made
more inconsistent because these decisions are not always made under general rules
and regulations but instead are made in each individual case. Existing state laws are
not sufficiendy specific in defining school residence.
Admission to the public schools is not an absolute right; it is a privilege. A
child must meet admission qualifications and these may go further than residence
and age. Health requirements are valid. Vaccinations are ordinarily required but
many school systems also require a general physical examination. These requirements have been upheld.2 Health standards differ considerably from one school
district to another, and from one examining physician to another. In some districts
there is no such requirement for admission. Should this area be left to local discretion?
The interest of the state in a healthy school population and its police power for
the general welfare of its residents would seem to suggest that state law should
specifically require local school administrators to have pupils examined as to their
physical condition and should fix minimum standards for such examinations. Probably the details should be left to state regulation so that the state school authorities
can devise ways and means and set up standards with the advice of the state public
health authorities. Local variations in certain basic essentials of health cannot be
justified in view of the mobility of our population.
On the other hand, full local discretionary power should be given to local
school administrators to assign pupils to particular schools and grades, according to
the convenience of the school system as a whole and the maturity of the pupils.
In most states, local school administrators have the power of assignment, implied if
not expressed. Yet, occasionally parents go to court to attempt to compel the admission of their children to a particular school. Laws that permit this unnecessary
litigation must lack something. Legislation could make the grant of power of
assignment more explicit and deny parents the right to take action against school
authorities on the basis of assignment decisions unless a constitutional right has
been violated. Such a law would clarify the power of local school administrators by
transferring an implied power to the category of expressed powers.
2 E.g., Streich v. Board of Education, 34 S.D. 169, 147 N.W. 779 (1914).
LAW AND CONTEMPORARY PROBLEMS
IV
COMPULSORY ATrENDANCE
Statutory problems presented by compulsory attendance laws rest largely upon
weaknesses found in their exceptions. Not all permitted exceptions are justifiable,
especially today. Many existing compulsory attendance laws were drafted years ago
and have not been amended to coincide with modern-day school organization and
current economic conditions. Some laws permit children to leave school upon completion of a minimum level of instruction, regardless of individual capacity to learn.
When this minimum is grade VI, grade VIII, or even grades IX or X, the goal is
low for today's standards. Some laws permit children to leave school when they
have completed the grades in the attendance area of their residence. This also
is -unjustifiable in the light of today's trend toward consolidated schools. Distance
between home and school, without transportation facilities, is another outmoded
exception to compulsory attendance laws. Roads and pupil transportation facilities
make these provisions obsolete.
Compulsory school attendance requirements can be met by attendance at a private school; the state cannot compel children to attend the public schools.8 Therefore, some degree of supervision over private schools should be enforced by the
state to assure that private school education is substantially equivalent to the public
school education offered children of compulsory school age. The right of a parent
to send his children to a private school is not a weakness of compulsory attendance
laws; but weakness lies in lack of state supervision over education of children not
attending the schools established by the state.
State school officers in most states have a degree of control over private schools
under existing law, but few exercise the authority that is theirs. Many school
officers feel that they are without the power or that the law does not give them adequate authority. Some question the constitutionality of legislation that would permit
or require state control of private schools, especially those maintained under the
auspices of sectarian groups. It must be remembered, however, that the education
of youth is a legal responsibility of the state and that the state has therein a right
to prescribe minimum standards for the education of all its future electorate, even
though parents have the right to send their children to the schools of their choice
for sectarian or other training not included in the public school program.
Many compulsory attendance laws permit "home instruction," some without any
qualification. Home instruction may be a necessary exception implied in the ruling
of the Supreme Court of the United States when it said that requiring attendance
of children at public schools would be an unlawful interference with the free choice
of 'parents to direct the education of their children.4 However, home instruction
should not be permitted unless it is equivalent to public school education. Whether
or not any home instruction can be equivalent to public school education is debatable,
*Pierce v. Society of Sisters, 268 U.S. 510 (1925).
'Meyer v. Nebraska, 262 U.S. 390 (923); Pierce v. Society of Sisters, 268 U.S. 5io (1925).
STATUTORY PROBLEMS
but, aside from the experience and training in group living, equality should be required at least in regard to textbooks, curriculum, and the teaching ability of the
home instructor. With special schools for handicapped and gifted children, the need
for home instruction no longer exists in most instances.
V
PUPIL TRANSPORTATION
Transportation laws offer their own problems. Few current pupil transportation
laws prescribe when pupils are to be transported. Usually local school administrators
have discretionary power in deciding when to furnish transportation. Although there
is a minority rule to the contrary, the prevailing judicial opinion is that a school district has no power to transport pupils without statutory authorization.5 Some laws
require transportation for pupils who live a specified distance from school and
permit or are silent with regard to other pupils; some laws are mandatory for certain schools and are permissive or silent with regard to others. Some laws are
permissive in their entirety or delegate decisive authority to state school officers.
Numerous questions must then be answered by judicial interpretation. May a
district transport its pupils when it is of a type not specifically named in the transportation law? May a district authorized to transport certain pupils extend its
program to include other pupils not specifically named in the law? May a district
transport pupils outside the geographical area of its boundaries? May school buses
be used to transport pupils to extracurricular activities? Too few pupil transportation laws answer these questions.
The circumstances under which pupils must be transported and the circumstances under which the school district may provide free transportation in the
exercise of its discretion should be identified in the law. Distance qualifications,
although the most common, are not necessarily the most advisable. Several states
provide transportation when a pupil lives "an unreasonable distance" from school.
Interpretation of what distance a child could reasonably be compelled to walk to
school is uncertain; it would depend upon many factors, including the age of the
child and the condition of the road. A Kentucky court took the position that a
short but unsafe distance is an unreasonable distance,6 suggesting that possibly the
ideal law might require transportation of pupils over short but dangerous roads
and over long distances regardless of their safety.
National school bus standards have been adopted in about three-fourths of the
states, usually by state board regulation. Before this trend began, the courts refused
parents the right to demand safe equipment, under the theory that furnishing transportation equipment was within the discretionary power of the local school district. 7
Contra, Williams v. Board of Public InShanklin v. Boyd, 146 Ky. 460, 142 S.W. 1041 (9X2).
struction, 133 Fla. 624, x8z So. 837 (938).
' Schmidt v. Payne, 304 Ky. 58, 199 S.W.2d 990 (1947).
'Greenlee v. Newton School Township, 55 Ind. App. 630, 104 N.E. 6xo (1914).
LAw AND CONTEMPORARY PROBLEMS
The same theory would apply today in states that have not adopted standards for
safe equipment.
Actually pupil injuries in connection with the transportation program have
usually occurred outside the school bus-for example, when a child crosses the street
or road after leaving the bus. However, because of the fear that transportation might
cause pupil injuries, many school districts carry liability insurance. There is probably no area wherein statutory problems abound to a greater degree.
In the first place, a distinction must be made between publicly owned and
privately owned school buses. In the second place, distinctions must be made among
different types of insurance. Fire-theft and collision insurance on publicly owned
buses are related to the school board's duty to preserve school property. That duty
does not carry over to privately owned buses. Property insurance and liability inhurance bring into the discussion the governmental immunity of most school districts. The common law rule denies the board power to insure against a nonexistent liability for personal or property damage. Finally, confusion exists because
some laws require insurance; others authorize it; some declare that carrying insurance does not waive the immunity of the school district; some state that failure to
carry authorized insurance does not impute liability; and some laws forbid carrying
insurance. In any of these instances, the law may refer generally to "insurance" or
may be specific with regard to kinds of insurance required or authorized. The result is that school funds have been used for the purchase of insurance that provides
no protection.
The state is interested in protecting its pupils from transportation injuries and
also in preserving the property it or its agents own. The state, therefore, should
clarify the complex situation that has arisen out of the carrying of school-bus insurance. Governmental immunity can be waived to the extent of the amount of
insurance carried; permission can be granted the injured to sue the school board for
the purpose of determining the amount of damages that are compensable by the
insurer. Unless either of these or some better solution is adopted, the problem remains unsolved because the insured has no guarantee that the insurer will pay a
claim that cannot be settled out of court. There has been strong objection to the
abrogation of governmental immunity. Several states have avoided this difficulty
by establishing state claims boards with power to adjudicate and pay claims resulting
from expenses incurred because of pupil transportation injuries.
It would not be fitting here to express personal preference for any one of these
solutions; it is, however, appropriate to point out the need for the adoption of some
kind of solution. The extent of the current confusion may be illustrated by the law
of one state that requires the school district to use public school funds to purchase
collision insurance on privately owned school buses (thus preserving private property) but forbids the school district to carry liability insurance on publicly owned
school buses because of governmental immunity.
STATUTORY PROBLEMS
VI
LIABILITY FOR PUPIL INJURIES IN GENERAL
Much less confusion exists with regard to the school district's liability for pupil
injuries sustained in other than transportation accidents. Only California and Washington, for designated kinds of cases, have abrogated their immunity; several other
states have authorized the use of school funds to reimburse teachers and certain
other agents of the school board for damages they are required to pay. The latter
are the "save harmless" laws that do not abrogate the district's governmental immunity. "Safe place" statutes and other laws that would appear to impose liability
on school boards are strictly construed by the courts. The rule of governmental
immunity remains generally throughout the country. Although liability insurance
is frequently carried by groups of school employees and occasionally statutory authorization has been given for the use of school funds to pay part or all of the premiums
for this insurance, no statutory ambiguity results.
Of course, teachers are frequently confused by the principles of the law of
negligence applicable to them individually. These principles rest on common law
precedents. It would be difficult to write them into the statutes; possibly doing so
would create rather than dispel confusion.
VII
DiscIpmNE
Another area in the administrative jurisdiction over pupils also rests largely on
the common law-namely, the right of teachers to punish pupils. Under common
law the teacher has the legal status of a conditionally privileged person standing
in loco parentis. The teacher is privileged to certain actions under certain circumstances and for certain purposes. This privilege includes physical chastisement or
other forms of punishment for the purpose of enforcing discipline, unless forbidden
by statutory or regulatory measures.
Few school laws deal specifically with corporal punishment of pupils. Under
common law the punishment must be reasonable, not excessive or malicious, and
given in a proper manner. Almost all states have general laws forbidding cruelty to
children. School boards frequently announce local rules and regulations that forbid
corporal punishment or declare how it is to be administered. Many states sanction
moderate and reasonable punishment through the definition of assault and battery
in the penal code with a proviso that restraint and correction of a child by a teacher
shall not be considered assault and battery. These provisions in the penal code preclude criminal action unless the punishment be excessive or unreasonable, but do
not affect a right to civil action against a teacher for damages in the event damages
have been incurred. Of course, a teacher who punishes a child in contradiction to
state or local regulations forbidding such punishment is subject to dismissal for
violation of the rule.
134
LAW AND CONTEMPORARY PROBLEMS
Since so few school administrators and teachers understand the distinctions between criminal and civil actions for assault and battery, since the common law
principles are usually unknown to the school staff, and since general laws are
seldom read by educators, silence of the school laws on this subject leaves many unanswered questions. Ambiguities need not exist. School laws should include provisions describing when and how corporal punishment may be administered or forbidding corporal punishment entirely or except under designated circumstances.
This matter should not be left to the teacher's individual judgment, or even to the
discretion of the principal of a school building or the administrator of a school system.
Differences that have arisen from one school district to another within the same
state and even from one school to another in some school districts leave teachers
and pupils confused as to their rights.
School laws are clear as to other forms of punishment. They declare definitely
who may suspend jupils and for how long; who may expel pupils and for what
reasons. Usually these laws refer generally to incorrigible children, but many are
specific with regard to the causes for suspension and expulsion. The two most
controversial causes for disciplining pupils in the past few years have been membership in secret societies and refusal to salute the flag.
Even though the Supreme Court of the United States has said that demanding
the flag salute of children whose religious belief did not approve this ceremony was
a violation of religious freedom guaranteed by the Federal Constitution, many states
have continued such a requirement on their statute books. One statutory problem
that has been implied several times in preceding paragraphs is the difficulty of removing obsolete school laws. That a state or a local school board has the legal
duty to follow precepts laid down by the highest court in the land is axiomatic.
Yet, so long as contrary statutes remain on the books, some people will attempt to
follow those statutory provisions, believing them to be valid.
VIII
CURRICULUM
Many of the statutory problems are raised because patrons, school boards, and
" chool personnel do not know the law. A perplexing and contradictory case arose
some years ago when a school board attempted to dismiss a teacher for failure to
teach physiology and hygiene in accordance with the law, when the teacher was
following the state-adopted syllabus." The basic course of study is often prescribed
by the state board of education; a few states write into law prescriptions of questionable wisdom. No one would quarrel with legislators who wish to require the teaching of a subject they considered essential, such as physiology and hygiene, but the
grade level and the amount of time to be devoted thereto should be left to the discretion of educators. Curriculum prescriptions in many school laws are too detailed.
A few states have enacted contingent legislation in the area of subject matter
8
Prevey v. School District No. 6, Cannon Township, 263 Mich.
622, 249
N.W. 15 (x933).
STATUTORY PROBLEMS
135
that is to be taught. For example, if a designated number of parents petition the
school board to inaugurate a course in a particular subject, the school board is required by law to grant the petition. Such a law creates for a school board financial
and administrative problems and destroys its discretionary power to offer a curriculum for the greatest good of the greatest number of pupils attending its schools.
Obviously local school administrators cannot violate state prescriptions. The state
has the power to fix a minimum course of study. The legislature may take this
step itself but usually it delegates this duty to the state board of education. Local
school administrators have the power to add to the state minimum program, but
they cannot omit from the curriculum what has been fixed as a requirement at the
state level.
The state also has the power to forbid the teaching of certain subjects in the
public schools. Parents who wish their children taught subjects not included in the
public school curriculum have the right to send their children to private schools for
such instruction. Thus, there is no invasion of the parents' authority over the
pupils, while at the same time the state maintains control of the essentials in which
it wishes its future citizens to, be educated.
Few controversies have arisen with regard to curriculum matters outside the
scope of religious education. This problem has many facets.
First, there is the common practice of having opening exercises. Some states
permit or require that several verses from the Bible be read on each school day;
several also include reciting the Lord's Prayer. The Federal Constitution requires
separation of church and state; state constitutions usually prohibit use of school
funds for sectarian education. Are opening exercises sectarian education? Although
the Supreme Court of the United States has not ruled on this question, many state
courts have held that the Bible is not a sectarian book and reading from it without
comment is not unconstitutional.
In a few instances, however, pupils attending the public schools have been subjected to opening exercises in which certain ritualistic features have been added by
individual members of the school staff. Such exercises are invalid because they follow
the form of worship of a particular church. Pupils and their parents have a right to
object under these circumstances.
On the other hand, nothing in the principle of the separation of church and
state prevents public school training in moral and spiritual values. Teachers give
considerable thought to the spiritual side of the children in their care. Public school
pupils learn to live together, to tolerate and understand differences in beliefs on
many subjects; consciously or unconsciously they learn ideals of family and society
in a democracy. Few, if any, educators would call this training religious education.
However, religious education, like religion itself, means different things to different
persons. Religious education in the public schools is unconstitutional. But, what
is religious education?
LAW AND CONTEMPORARY PROBLEMS
To some there can be no religion disassociated from the supernatural as interpreted in the doctrines of churches. These persons accept moral principles as a part
of religious doctrine but, in their opinion, when separated from doctrine, the principles become merely a system of ethics. Others believe that there are a number
of universal "spiritual values," broader and deeper than ethics, but not necessarily
associated with the doctrines of any particular church. Those who think this way
also believe that these spiritual values can be taught without sectarian bias or interpretation.
The word "sectarian" itself has different meanings to different people. Some use
it to mean the individual churches of the Protestant faith. Others apply the term
in distinguishing between Christians and Jews, or among groups of ChristianityProtestant, Greek Catholic, or Roman Catholic. Secular education is sometimes
considered completely devoid of spiritual values; to others the secular can include
spiritual values, provided the instruction is not sectarian.
Therefore, the constitutional and statutory prohibitions against sectarian education in the public schools or the use of school funds for sectarian education are
variously interpreted, depending upon the individual's philosophy of religion. No
diversity of opinion appears with regard to instruction in comparative religion, or
perhaps instruction on the contributions of religions to present democratic procedures
-the place of religion in our cultural heritage. No controversy arises with regard
to training in ethics through secular subjects .and school activities that foster group
understanding, teamwork, good will, and the protection of minority groups. The
challenge arises when this kind of education deals with the dogma of religion.
Since religious education, as such, cannot be given in the public school curriculum,
many schools excuse pupils from the regular school work for a period each week
for religious instruction under the auspices of the churches. This is known as a
released-time program. Many variations of this program are in operation in different
schools. Many state laws authorize released-time programs but usually in general
terms. Local school districts and sometimes administrators of individual school
buildings plan implementation of the state authorization. Classes in religion may
be held in church buildings or in school buildings; classes may be held during the
school day or after school has been dismissed; the school staff may keep records of
pupils' attendance at these classes in religion, or may not; pupils who do not attend
the religious education classes may be required to devote the time to their regular
school work or may be permitted to go home; choice of the church which the
parents wish their children to attend may be made via school authorities or directly
to the churches operating the classes; credit may be given toward graduation for
attendance at classes in religion, or may not. Not all the many variations have
been reviewed by the courts. Undoubtedly many schools are operating released-time
programs that would be declared invalid if challenged judicially. Is it wise to permit
local discretion in a matter involving a constitutional right?
STATUTORY PROBLEMS
State school laws should be more explicit with regard to what is or is not to be
done by the public schools in the training of moral and spiritual values and in the
avoidance of sectarian education. Such a law enacted by legislators, presumably
after advice as to its constitutionality by the attorney general's office, needs to be tested
only once in the courts to ascertain its validity. Perhaps that is one principle that
could be set down in contemplating statutory problems in the jurisdiction over
pupils-that, when a constitutional right is involved, the matter should not be left
to local discretion.
CONCLUSION
Out of the foregoing discussion of the kinds of statutes governing the administration of the public schools, from the point of view of jurisdiction over pupils, and
the discussion of certain aspects of the pupil's school life as illustrative of the statutory problems abounding in this area, it may be possible to conclude with a tentative
statement of general principle.
Legislators should leave educational details to educators, stating only broad
policies and delegating to state or local school administrators the power to fill in
details that meet current needs. In implementing legislative policy, however, state
and local school administrators must take cognizance of constitutional and statutory
provisions, as well as pronouncements of the courts. When local abuse can be
anticipated in a particular area, the legislature should draft its laws so as to minimize and, if possible, avoid local abuse. Especially when a constitutional right of a
child is involved, the matter should not be left to local discretion because of the
possibility of diverse interpretations of the scope of such a right.
Above all, school laws should be clear, consistent, and constitutional. If this were
so, many of the current statutory problems would not exist.